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Individuals and entities with concerns regarding environmental issues as well as those concerned about the federal judicial system have carefully followed the debate over the possible division of the United States Court of Appeals for the Ninth Circuit that has been raging since 1995. During the first session of the 105th Congress, the Senate approved an appropriations rider, which would have established a new Twelfth Circuit including Alaska, Arizona, Hawaii, Idaho, Montana, Oregon, Washington, Guam, and the Northern Mariana Islands, and would have left California and Nevada in the Ninth Circuit. That action was very important because neither house of Congress had ever voted to split the Ninth Circuit, and this session could well have done so. Circuit division might have significantly affected the environment, public lands, and natural resources, as well as the federal courts of the West and the nation. In November 1997, however, Congress rejected circuit bifurcation and approved a study of the appellate system that would emphasize the Ninth Circuit. Congress authorized the Chief Justice of the United States to appoint the Commission on Structural Alternatives for the Federal Courts of Appeals (the Commission) in December 1997. The Commission closely analyzed the appellate courts and the Ninth Circuit for nearly a year and issued a report with constructive suggestions for improvement. Because the commissioners were experts, had committed much effort to the assessment, and developed a comprehensive report, their recommendations promised to be influential. For example, the Commission proposed the idea of adjudicative divisions for the Ninth Circuit today and for the other appeals courts as they grow, while the commissioners clearly and forcefully rejected the possibility of splitting the Ninth Circuit. These suggestions have already proved controversial. For instance, soon after the Commission tentatively recommended the divisional arrangement, most active and senior appellate judges of the Ninth Circuit sharply criticized it, even as seven other members of the court urged the commissioners to endorse bifurcation. Some senators who reluctantly agreed to the study as a necessary, albeit unpalatable, condition precedent to dividing the circuit, recently introduced proposed legislation which would split the court, while several senators had earlier offered a measure that incorporates the Commission's suggestions. If Congress passes a statute that would bifurcate the Ninth Circuit or adopts the Commission's concept of adjudicative divisions and additional Commission recommendations, these actions could substantially affect the environment and the federal courts in the western United States and the country. The extraordinary quantity and quality of natural resources that the Ninth Circuit encompasses accentuate the importance of the commissioners' report and proposals. Illustrative are the large percentage of national parks, the many wilderness areas, and the significant number of national wildlife refuges that are situated in the Ninth Circuit. These considerations mean that the recent report and suggestions of the Commission deserve evaluation. This Article undertakes that effort. Part I of the Article analyzes the developments that led to the creation of the Commission. Part II briefly discusses the commissioners' work. Part III analyzes the Commission's report and proposals by emphasizing the potential effects of the recommendations on natural resources. Part IV sets forth suggestions for the future.

Professor Arthur Hellman recently published a trenchant critique of the report compiled by the Commission on Structural Alternatives for the Federal Courts of Appeals. In The Unkindest Cut: The White Commission Proposal to Restructure the Ninth Circuit, he emphasizes that the report adduced little empirical data which demonstrate that the Ninth Circuit operates inefficaciously. Indeed, the commissioners candidly declared: "There is no persuasive evidence that the Ninth Circuit . is not working effectively . .'' Despite this admission, the Commission prescribed drastic change with a divisional concept, which Professor Hellman finds flawed. He thus urges that Congress "reject the proposal and allow" the circuit to continue the successful experimentation which it has pursued for twenty years. The next step is crucial. Congress is now seriously considering three major bills. One would implement the Commission plan. Another would split the court. A third would treat Commission concerns by regionally assigning judges and modifying the limited en bane process. The Ninth Circuit itself endorses the last option as a "reasoned, responsible alternative to [Senate Bill 253's] radical restructuring." These proposals are among two dozen recommendations of an Evaluation Committee which is assessing the administrative structure and the operations of the circuit. This essay undertakes an analysis of the Commission's work, The Unkindest Cut, the Senate Bills, and the Ninth Circuit's own efforts. I initially evaluate the article and then compare the measures being explored. My essay concludes with an examination of the best approach.

Professor Laurens Walker's The End of the New Deal and the Federal Rules of Civil Procedure, 82 Iowa L. Rev.1269 (1997) (New Deal's End), is a thought-provoking evaluation of the relationship between the New Deal's conclusion and modem civil process. Professor Walker canvasses a series of recent, puzzling changes which "present the most serious challenge to the procedural status quo since the adoption of the original Federal Rules in 1938." The author finds that the New Deal's demise and the rejection of that regime's reliance on experts, policies of centralized federal decisionmaking, and establishment of the national government as an instrument for social reform best explain these modifications. Professor Walker admonishes proceduralists to accept inevitable political change and to consider it when planning reform. Asserting that "[m]ajor change in political structure and practice requires bold action," the writer calls for the creation of a national study group to undertake a searching review of civil process and to craft innovative remedies for present difficulties. Professor Walker provocatively suggests as a fruitful source of solutions recent welfare reform, from which he derives purportedly promising concepts: waivers of federal strictures, enhanced local control, mandatory research, and incentives for better management. New Deal' s End is the latest of Professor Walker's concerted efforts to improve procedural revision at the national level and in the ninety-four federal district courts. He has scrutinized the processes for amending federal and local civil procedures and devised constructive recommendations. The author has attacked the processes' pressure points while urging relevant decisionmakers, particularly Congress and federal judges, to employ the tools of controlled experimentation, administrative law, and economic analysis in altering procedure. Professor Walker's decade of careful work on these processes spans the very period when procedure has become increasingly balkanized. Indeed, that growing fragmentation apparently prompted the writer's abandonment of "less drastic ways to improve the current system" which he had previously championed. The above propositions mean that New Deal' s End deserves a response. This Essay undertakes that effort.

In continuing the series of essays which evaluate and document the phenomenon of federal civil justice reform, this essay initially affords an update on recent developments in civil justice reform at the national level and in the United States District Court for the District of Montana (Montana District). The essay emphasizes the conclusion of two major studies that analyze the national reform effort and the submission to Congress of reports and a recommendation, which were premised substantially on these studies, by the Judicial Conference of the United States. The essay also stresses the completion by the Ninth Circuit District Local Rules Review Committee of its work as well as issues implicating case assignments and the future of civil justice reform in the Montana District. The essay concludes with a look into the future.

Congress has authorized 179 active judges for the United States Courts of Appeals and 649 active judges for the United States District Courts. Eighty-two judgeships are now vacant, although the size and complexity of federal caseloads continue to increase. More than thirty openings are considered "judicial emergencies" because they have remained unfilled for eighteen months. The Ninth Circuit, which must resolve the largest docket of the twelve regional appellate courts, currently has nine vacancies on a circuit with twenty eight active judges and for which the Judicial Conference has recommended the creation of nine additional judgeships. The Speedy Trial Act's requirement that criminal cases receive preferential treatment has precluded numerous district judges from conducting a single civil trial since 1995, while the district courts have a civil backlog of thousands of suits. Indeed, Chief Justice William H. Rehnquist recently characterized as "bleak'' the prospects for appointing judges to the eighty open seats, and admonished the "President [to] nominate candidates with reasonable promptness, and the Senate [to] act within a reasonable time to confirm or reject them" The first Section of this Article descriptively examines the history of federal judicial selection, emphasizing recent developments which led to the problem involving appointments. I find that a constellation of phenomena which can be ascribed to numerous institutions and people with some responsibility for choosing judges has created, left unresolved, or exacerbated the complications caused by unfilled judicial seats. Moreover, the problem actually has two facets. One is the persistent vacancies problem Its principal sources are expanded federal court jurisdiction and exponential caseload growth that have required Congress to enlarge the bench significantly, thereby concomitantly increasing the number and frequency of openings, since the 1960s. The other component is the current impasse. The present dilemma's primary origins are political, and it derives at least in part from different political parties' control of the White House and the Senate. This evaluation also reveals that the complication presented by vacancies is at once complex and sensitive. It comprises a plethora of matters which range from questions that involve separation of powers to issues implicating raw partisan politics. For example, those who participate in the selection process nmst carefully strike an appropriate balance between the need for expeditious appointment and for meticulous scrutiny of individuals who will exercise the enormous power of the state and have life tenure. I conclude that the large number of judicial vacancies and their protracted nature threaten the federal courts and that the problem must be treated promptly. The next part of the Article, therefore, explores possible solutions for empty judgeships which many officials in the executive, legislative and judicial branches of government might employ. I assess the approaches mainly in terms of their advisability, as matters of pragmatic policy, practical politics and sound governance, ascertaining that they would have varying degrees of efficacy. For instance, some measures could address the unnecessary delay which attends the permanent difficulty, but nruch delay is inherent and resists felicitous reduction. Public officials, principally in the Administration and the Senate, might concomitantly apply numerous mechanisms that would solve those political problems which contribute substantially to the existing dilemma if they had sufficient political will. Because important features of the generic complication and the recent impasse may only be amenable to amelioration, I also discuss means of addressing the effects of vacancies. The final Section affords suggestions for implementing specific alternatives that apparently would have the greatest promise.

The Contract With America figured prominently in the Republican Party's victories in the 1994 congressional races. During the opening days of the 104th Congress, therefore, approximately one hundred sponsors introduced the Common Sense Legal Refonns Act (CSLRA), which embodied several measures that comprised the Contract's ninth precept. The only constituent of this package of proposals which actually became law was the Private Securities Litigation Refonn Act (PSLRA). Both Houses of Congress did pass products liability reform bills but lacked the requisite votes to override President Bill Clinton's veto. The House of Representatives approved the Attorney Accountability Act (AAA), which would have modified the substantial 1993 amendment in Federal Rule of Civil Procedure 11 governing sanctions; Federal Rule 68 covering offers of judgment; and an evidentiary requirement that the Supreme Court interpreted in 1993. The Republican Party captured additional seats in the Senate and retained a slight majority in the House of Representatives in the 1996 elections; however, the Grand Old Party has insufficient votes to override vetoes which might be exercised by President Clinton, who won re-election. It was, thus, unclear that Republicans would reintroduce a products liability bill or the AAA, or would offer other substantive or procedural reform measures. Although the leaders of both political parties made conciliatory overtures immediately after the 1996 elections, Republican members introduced several important legal reform proposals at the outset of the 105th Congress. These measures would individually and synergistically have important impacts on considerable federal civil litigation and the civil justice system. For example, the proposals' sponsors apparently introduced the measures with minimal understanding of how they could affect several significant, continuing public and private reform efforts, most notably the Civil Justice Reform Act (CJRA) of 1990 which is scheduled to sunset in 1997. The reforms' passage, therefore, might have numerous adverse impacts, such as further fragmenting the already fractured character of federal civil procedure. Some of the proposals' strictures could even have effects opposite froni those which sponsors intended and those expressly prescribed in the CJRA by, for instance, increasing cost and delay in civil litigation. The new measures, thus, may be symptomatic of much that is presently wrong with the civil justice process and might exacerbate certain problems. Notwithstanding several of the complications enumerated, Congress's composition apparently affords opportunities for bipartisan cooperation which could lead to the adoption of legal reforms. The above factors mean that the recently introduced proposals deserve analysis. This Article undertakes that effort. This Article's first section describes the background of the new legal reforms, emphasizing those ongoing public and private initiatives with which important aspects of the recent measures may conflict. The second section descriptively evaluates the substantive and procedural provisions of the PSLRA and the latest proposals and examines the detrimental impacts which these strictures may have on continuing reform efforts, particular cases, and the civil justice system. This section determines· that numerous requirements in the measures alone and together could adversely affect plaintiffs and parties with limited resources or power, such as civil rights litigants by, for example, restricting their access to federal court. The proposals individually and in combination might also have deleterious impacts on the civil justice process. They may conflict with ongoing reform endeavors, and increase complexity and disuniformity in federal civil procedure, which will correspondingly impose greater expense and delay. The third section, accordingly, offers recommendations for the future, which principally involve attempts to resolve problems that the recent measures present. These suggestions primarily call upon Congress to reject the AAA and the products liability proposal or delay passage of their prescriptions which would have the disadvantageous effects delineated above while rescinding, or discontinuing implementation of, the PSLRA's provisions that are having those impacts. If Congress believes that the two new refonns' effectuation will not have, and that the PSLRA has not had, detrimental effects on continuing initiatives, considerable civil litigation, or the civil justice system, or if it decides to proceed for different reasons, Congress must at least evaluate other possibilities. For instance, Congress should attempt to harmonize the proposals' requirements with ongoing reform efforts, namely the CJRA which may expire soon.

Congress recently considered some proposals to split the Ninth Circuit, proposals that could have far-reaching effects on the environment, public lands, and natural resources. This Article first looks at some of the recent developments in Congress, particularly the authorization of a national study commission to examine the federal appeals courts. Professor Tobias predicts that the Ninth Circuit will be split during the next decade. He cautions against using political considerations to conduct legislative policymaking with respect to thefederal courts. He suggests that those concerned about the environment gather reliable information and explore alternatives to circuit-splitting. If Congress decides to bifurcate the Circuit, he suggests that it examine how districts will be realigned, particularly in terms of concepts such as ecosystems, endangered species habitats, wildlife corridors, or river drainages, and in terms of specific natural resources such as old growth forests, salmon, and grizzly bears.

The Civil Justice Reform Act (CJRA) of 1990 instituted a nationwide experiment with procedures for decreasing expense and delay in federal civil litigation. Congress required all ninety-four federal district courts to adopt civil justice expense and delay reduction plans and to apply cost and delay reduction measures for at least four years.Congress correspondingly prescribed considerable evaluation of the experimentation which the federal districts undertook. The 1990 legislation mandated that each court annually assess the efficacy of the procedures which the district employed. Moreover, Congress required that an "independent organization with expertise in the area of Federal court management" conduct a comprehensive analysis of measures being implemented in the pilot program instituted by ten districts under the CJRA. Congress also mandated that the Judicial Conference of the United States, the policymaking component of the federal courts, in consultation with the Federal Judicial Center (FJC) and the Administrative Office of the United States Courts, important research arms of the federal courts, thoroughly scrutinize the effectiveness of procedures which five districts applied in the statutorily-prescribed demonstration program. Furthermore, Congress asked that the Judicial Conference submit to Congress reports on the pilot and demonstration court experimentation and a recommendation on whether the pilot project warranted expansion. The RAND Corporation, the independent entity which undertook the multi-year examination of the pilot program, completed its evaluation of these districts' experimentation during September 1996. The FJC, which had responsibility for assessing the demonstration courts, concluded this study in January 1997. The Judicial Conference submitted its report to Congress during May 1997, and that report is reproduced in last month's advance sheet of Federal Rules Decisions. Because the Judicial Conference report on civil justice reform represents the culmination of this unprecedented experiment with measures for reducing expense and delay, it is important to analyze the Judicial Conference report and the current status of the Civil Justice Reform Act. This essay undertakes that effort. The first section of the essay affords a descriptive assessment of the Judicial Conference report on federal civil justice reform. The second part offers constructive criticisms of the Conference report. The final portion provides suggestions for the future.

The United States Congress recently authorized the appointment of a Commission on Structural Alternatives for the Federal Courts of Appeals. That entity has an historic opportunity to analyze carefully the federal appellate system and make valuable suggestions for improvement, thereby charting the destiny of the intermediate appeals courts for the twenty-first century. The creation of this new commission is important because now is a critical time for the appellate courts. All twelve regional circuits have experienced exponential docket growth but have possessed insufficient resources to treat the cases: this crisis of volume now seriously threatens the system. This Article initially considers the developments that led Congress to approve the commission. The background is particularly significant because assessment of the mandate that Congress assigned the entity suggests that the charge is unclear, very general, and amenable to multiple plausible interpretations. The convoluted and complex-if not arcane-legislative process that yielded the authorizing statute additionally frustrates understanding. For example, a House-Senate Conference Committee adopted the study measure as a substitute for an appropriations rider that would have divided the United States Court of Appeals for the Ninth Circuit. The commission, therefore, was ultimately the product of congressional machinations which had quite different purposes and of lengthy, controversial negotiations among senators and representatives who held extraordinarily diverse views. These propositions mean that Congress effectively left significant features of the entity's evaluation and its recommendations to the discretion of commission members and their staff. For instance, the authorizing legislation requires that the entity focus on the Ninth Circuit, but it is unclear how much emphasis this court should receive. Moreover, the commission and the staff must expeditiously resolve these issues, so that the entity can discharge its daunting assignment in the exceedingly short compass afforded. The Article accordingly probes the events that preceded adoption of the study commission statute to ascertain precisely what Congress intended. This inquiry proves somewhat inconclusive, although it is possible to extract certain ideas from the relevant legislative history. The Article concludes with recommendations for conducting the study. Because all of the appeals courts have experienced burgeoning dockets over the last quarter-century and have developed a broad spectrum of measures for treating them, the entire system warrants comprehensive analysis. The finest solutions for the problems that every appellate court confronts can only be crafted after the commission systemically collects, assesses and synthesizes the maximum relevant empirical data on increasing appeals and mechanisms for addressing caseload growth. Once the entity has compiled and consulted the largest quantity of accurate information, it should be possible to identify the best remedies for the difficulties that the regional circuits will face in the twenty-first century.

Over the last three decades, growing caseloads and finite resources have fostered expansion of the jurisdiction, responsibilities, prestige and compensation of United States Magistrate Judges. Passage of the Civil Justice Reform Act (CJRA) of 1990, which required local experimentation with procedures for reducing expense and delay in civil litigation, propelled this development in many of the ninety-four federal districts across the country. The United States District Court for the District of Montana has quite strongly evidenced these phenomena. Perhaps most important, the CJRA expense and delay reduction plan that the district prescribed in 1991 included an opt-out procedure which it intended would secure a larger number of consents to magistrate judge jurisdiction in civil cases. That procedure's adoption, related developments, such as the need for the district's Article III judges to devote considerable resources to resolving their criminal dockets, and the perception that the magistrate judges concomitantly resolve civil cases as efficiently, fairly and expeditiously as the Article III judges have led many lawyers and parties in the Montana District to view magistrate judges as similar to Article III judges for the purpose of civil dispute resolution. The factors mentioned above, the increasingly complex nature of criminal and civil caseloads, the steadily expanding character of civil dockets in the United States and the Montana District, and the need to find innovative ways of resolving these disputes with limited resources mean that the office of magistrate judge in the country and in the Montana District warrants analysis. This essay undertakes that effort. The piece initially examines the origins and development of the office of magistrate judge nationally and in the Montana Federal District Court, emphasizing the recent expansion of magistrate judges' roles and responsibilities. The paper concludes with suggestions for the future.

In mid-November, the first session of the 105th Congress passed a measure authorizing a national commission to study the federal appeals courts. On November 26, President Clinton signed the legislation. The Commission on Structural Alternatives for the Federal Courts of Appeals has a historic opportunity to analyze carefully the federal appellate system and make valuable suggestions for improvement, thereby charting the destiny of the intermediate appeals courts for the 21st century.

Elitism, Expediency, and the New Certiorari: Requiem for the Learned Hand Tradition is a thought-provoking critique of the United States Courts of Appeals. Professors William Richman and William Reynolds maintain that dramatic increases in appellate filings have transformed the appeals courts during the last quarter-century, prompting systemic constriction of procedural opportunities, particularly for parties with few resources or little power. The authors find these changes profoundly troubling and propose that Congress radically expand the number of appellate judges. Individuals and institutions, such as expert study committees, which have analyzed the federal courts, agree with much of the authors' descriptive assessment. Less consensus, and even some controversy, attend the writers' provocative suggestion that the creation of many additional judgeships will resolve the conundrum posed by growing dockets and numerous other difficulties which the appellate courts confront today. These factors mean that the authors' valuable contribution to understanding the appeals courts warrants a response. This essay undertakes that effort. My paper invokes a number of federal court studies and applies insights gleaned from the continuing debate which involves possible division of the Ninth Circuit. This court is instructive because its experience with mounting caseloads epitomizes developments in many regional circuits since the 1970s and typifies the treatment that the writers criticize. I first evaluate the authors' descriptive account and identify aspects of their discussion with which a number of federal court observers concur and differ, and I find considerable agreement about most of the features. For example, numerous analyses of the federal civil and criminal justice systems and the ongoing controversy over the Ninth Circuit reveal that the appellate courts have undergone a transformation in the past several decades. My response then assesses the writers' prescription. I ascertain that phenomena ascribed to multiplying appeals and many additional complications facing the appeals courts constitute a polycentric problem. This difficulty apparently requires application of a varied mix comprising myriad available solutions, but the precise combination of approaches which would be most efficacious remains unclear. The judiciary's expansion is only one potential remedy. However, it would also impose disadvantages, might be less effective than numerous alternative solutions, and might be politically unrealistic. The above difficulties show, μierefore, that Congress should appoint a national commission to evaluate the appellate system. I conclude with recommendations for creating this entity and for how it might proceed.

President Bill Clinton appointed unprecedented numbers and percentages of highly qualified female and minority lawyers to the federal bench during his initial half-term in office, substantially surpassing the records of Presidents Ronald Reagan, George Bush and Jimmy Carter. The Clinton administration invoked an efficacious, uncontroversial selection process and filled a significant percentage of the 113 judicial openings that existed when it assumed office. Some federal court observers questioned whether the Chief Executive could maintain this commendable record during his presidency's third year. More specifically, they wondered if Republican Party control of the United States Senate, which must approve nominees, and the impending 1996 presidential election might slow the confirmation process; reduce the number of female and minority attorneys named; and increase the number of appointees who are less controversial and more moderate politically. Now that the first session of the 104th Congress has adjourned, it is important to analyze the Clinton administration's success in naming judges. This Essay undertakes that effort by concentrating on the appointment of women and minorities to the federal courts. The initial section of the piece briefly explores modem judicial selection, focusing on the policies and procedures for choosing judges, and the lawyers named, during the Carter, Reagan and Bush presidencies. The Essay then evaluates the judicial selection goals enunciated, the practices employed, and the attorneys appointed, in the Clinton administration's third year. I ascertain that President Clinton named substantial numbers and percentages of extremely capable women and minorities, although the Senate did not consider two of the Administration's nominees who had Judiciary Committee hearings, and fifty judicial vacancies remained when the Senate recessed. The paper correspondingly finds that the effective selection process applied during President Clinton's first half-term continued to operate smoothly, as witnessed by the numerous, highly competent lawyers whom the Administration nominated and appointed. I also determine that President Clinton filled many judicial openings and that he bears little responsibility for the seats that are empty. Moreover, it is important to have on the bench the complete complement of judges authorized. For example, only that full contingent can satisfactorily expedite the disposition of cases, decrease existing civil backlogs in numerous districts and ameliorate the pressures which the 1994 crime legislation will impose on the justice system. Ascertaining that the Administration has instituted procedures which could foster the appointment of additional, very able women and minorities and the elimination of all vacancies, I assess why President Clinton should attempt to achieve this objective and how his Administration might realize that purpose.

The United States District Court for the District of Montana recently certified an important question of products liability law to the Montana Supreme Court. United States Senior District Judge Paul J. Hatfield certified the following question: In a strict products liability case for injuries caused by an inherently unsafe product, is the manufacturer conclusively presumed to know the dangers inherent in his product, or is stateof- the-art evidence admissible to establish whether the manufacturer knew or through the exercise of reasonable human foresight should have known of the danger? Because the issue of the admissibility of state-of-the-art evidence in a products liability case is important to the jurisprudence of products liability law in Montana but is an unresolved question, the issue warrants analysis. This essay undertakes that effort. The piece first affords a brief overview of state of the art. The essay next examines the origins and development of products liability law in Montana and whether the Montana Supreme Court or the Montana Legislature has expressly addressed the issue of state of the art. Finding that the court has spoken with greater specificity than the legislature but that neither entity has treated the question with much particularity, the paper then evaluates additional sources of law which the Montana Supreme Court might consult in resolving this issue. The essay concludes with suggestions for how the court should resolve the question of the admissibility of state of the art in Montana.

Individuals and organizations concerned about natural resources should be aware of the recent controversial proposal to divide the United States Court of Appeals for the Ninth Circuit. During the first session of the 104th Congress in the fall of 1995, the United States Senate Judiciary Committee approved Senate Bill 956, a measure that would establish a new Twelfth Circuit consisting of Alaska, Arizona, Idaho, Montana, Nevada, Oregon, and Washington, and that would leave California, Hawaii, Guam, and the Northern Mariana Islands in the Ninth Circuit. The Judiciary Committee vote was important for two reasons: the circuit's division could substantially affect natural resources in the region and throughout the nation, and no prior proposal to split the circuit has ever progressed so far, making bifurcation a possibility in the second session of the 104th Congress.